criminal procedure and the use of audio-recording

Criminal procedure and the use of audio-recording in Taiwan
- the effects of the new law

1. Background
Electronic recording systems have been installed in every District Prosecutors’ Office for several decades. However, police stations have not been equipped in this way. The movement toward providing recording systems in order to protect the accused gathered strength in the late 1990s. The system protects the public interest by helping to ensure honest and effective law enforcement and also protects the individual interests of police officers wrongfully accused of improper tactics. In 1998, a new criminal procedure amendment came into force. According to Article 100-1 of the Code of Criminal Procedure, 1997, the entire proceedings of interrogation must be audio-recorded, and may also be video-recorded if necessary, in order to protect the human rights of defendants.

2. Regulations
2.1 Constitution of the R.O.C.
2.1.1 Article 8. Personal Freedom
People shall be guaranteed personal freedom. Except in cases of flagrante delicto as provided by law, no person shall be arrested or detained otherwise than by a judicial or police authority in accordance with the procedure prescribed by law.
When a person is arrested or detained on suspicion of having committed a crime, the authority making the arrest or detention shall in writing inform the said person, and his designated relative or friend, of the grounds for his arrest or detention, and shall, within 24 hours, turn him over to a competent court for trial.
2.1.2 Article 24 ( Public Functionary’s Responsibility and Torts Claim)
Any public functionary who, in violation of law, infringes upon the freedom or right of any person shall be held responsible under criminal and civil laws and be subject to disciplinary measures in accordance with law. The injured person may claim compensation from the State for damage sustained.
2.2 Code of Criminal Procedure
Article 100-1 : the recording system
· Paragraph 1 of Article 101-1:
The defendant’s interrogation shall be audio-recorded in full. If necessary, uninterrupted video-recording shall also be made. This, however, shall not apply under exigent conditions as specified in the written transcript.
· Paragraph 2 of Article 101-2:
If any inconsistency exists between the audio or video recording and the written transcript, the inconsistent part of the statement shall not be used as evidence except in special circumstances.
2.3 Other relevant regulations
· Regulations for audio and video recording when police question a suspect. (Announced) 1998/07/02
· Regulations for using and keeping audio and video records made by the police and prosecuting authority. (Announced) 2004/03/03
· Regulations concerning the use of audio recording in court
(Announced) 1990.04.30 (Amended) 2003.06.25
Originally audio recording was used only to protect the human rights of defendants during questioning. Later, the system was expanded to include witness statements in the investigation rooms and the court. According to the "Regulations concerning the use of audio recording in court", a recording shall be made at all civil, criminal and administrative courts when in session.

3. Analysis of judgments
Article 100-1 of the Code of Criminal Procedure was revised in 1998. Since then, all written decisions made by judges have been posted on the Internet for public reference. This brochure examines claims of mistreatment made by defendants, whose police station recordings were therefore reviewed by the court. It also evaluates the efficacy of judges’ examination of the above cases for the period 1999 - 2007 in the Kaohsiung D.C.

Kaohsiung D.C. 1999-2007 – number of cases in which the defendant claimed mistreatment by the police and whose interrogation recording was examined, and the number of cases where the defendant was acquitted of prior charges due to inadmissible evidence

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no. of cases no.acquitted
1999: 4 1
2000: 13 4
2001: 14 4
2002: 25 4
2003: 30 6
2004: 22 4
2005: 21 2
2006: 41 5
2007: 19 0


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Percentage of defendant complaints upheld
1999:25%
2000:30%
2001:18%
2002:16%
2003:20%
2004:18%
2005:9.5%
2006:11.9%
2007:0%
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Analysis
Data indicates that in cases handled by the Kaohsiung D.C., defendants are increasingly refuting the truth of the written transcripts of their statements on the grounds that these were not made voluntarily. The percentage of such complaints upheld by the judge has fallen steadily. Defendants have become more skillful at taking advantage of procedural defects. Nevertheless, stricter requirements for audio and video recordings during interrogation have resulted in a decline in the number of inadmissible cases.


4. Effects of implementation
4.1 Disadvantages
Audio recording calls for a huge expense of time and manpower. Furthermore, where computers are used to store the recording, problems of maintenance, integration and security problems may arise.

4.2 Advantages
4.2.1 Protecting human rights: Elimination of the use of torture to extract confessions
The prosecution and investigative agencies are required to observe all regulations in making audio or video recordings during an interrogation and go further to protect human rights when they make written records.
4.2.2 Ensuring freedom in making confessions
In Taiwan, as there is no special law to punish false statements made by defendants, retraction of confessions in court is commonplace. A full audio or video recording enables the judge to hear a defendant’s confession in his own words and see his body language, and ensures the defendant’s freedom in making confessions.
4.2.3 Providing the police with a legal basis for action
In Taiwan there is no provision for punishing false statements made by defendants. As a full investigation is required into a defendant's complaint of torture or denial of freedom while making his statement, the prosecutor may appeal to the judge for a stiffer punishment if the defendant is found to have made a false statement.

5. A special system for sexual-assault cases
5.1. Introduction
So that victims of sexual assault do not suffer additional stress during repeated questioning, special regulations governing audio and video recordings have been established.
5.2. Reducing the need for victims of sexual abuse to repeat their statements
Intended applicants:
Victims of sexual abuse who are mentally retarded or are under the age of sixteen.
Other victims who agree to the application and who are found to be in need when interviewed by social workers prior to the interrogation.
Each sexual crime prevention center shall set up a private and friendly interview area, equipped with unobtrusive electronic recording facilities and partitioned with one-way glass walls. This area should also be fitted with a computerized video system. The entire interrogation, which may be directed by a prosecutor through the use of an on-line system, is audio-visually recorded without interruption.
When a special social worker interviews the victim, he must tell the victim the rights provided for in the Criminal Code of Procedure, ask whether he or she is willing to participate in the process, and inform the victim that the whole process will be audio-visually recorded. When preparing the records, the social worker may link to the computer systems of the juvenile court, prosecution, and military prosecution service in order to reduce unnecessary repetition of statements prior to the interrogation.
5.3 Efficacy of implementation
A sexual offense is committed less openly than other offenses and there are rarely witnesses. Victims are often reluctant to come forward with an accusation. Instead, they choose to conceal their suffering rather than go to court. Even when they do take the witness stand, they may keep silent throughout the hearing. There are even cases of suicide in such situations. For these reasons, it is very important to preserve the findings of the preliminary investigation in order to avoid additional suffering and to protect mentally retarded victims and those under 16, who do not have the ability to make complete statements.
This slide examines cases where the judge decided to view video recordings in court. The cases come from the Kaohsiung Juvenile Court for the period 2001 - 2004. In two of the 13 cases, the video recordings convinced the judge that the defendants were not guilty and they were therefore acquitted. In one case, for technical reasons, no video recording was found, so the pre-trial statement was deemed inadmissible. However, the defendant was found guilty on the basis of other evidence. In all the other cases, the defendants were found guilty because the video recordings together with other supporting evidence proved that the statements were admissible.
5.4. A case study from 2002
The defendant drove by a kindergarten and saw three 9-year-old girls playing there. He asked the girls to help him remove some objects from his vehicle. After the girls had been lured inside, he drove them away and forced them to have sexual intercourse and commit obscene acts with him. As the victims were unwilling to appear in court, the judge decided to examine the video recording made at the time of the case.
The verdict
In the verdict, the judge stated: “Examination of the video recording showed that when girl 9104, the most traumatized victim in the case, mentioned how she had been forced to have oral sex and masturbate, she cried out in horror and could not continue. The mother and the girl embraced each other and the scene was very moving. When the girl grows up, all her hopes will disappear and she won’t be able to say a word to others about her suffering.” The judge wrote this paragraph as part of the verdict and, with other supporting evidence, determined that the defendant was guilty.
5.5. Conclusion
A complete video recording may increase the credibility of evidence in cases where the victim is mentally retarded or a child below the age of 16. The foregoing example indicates that when a victim is so mentally retarded or so traumatized that he/she cannot make a statement, or is unwilling to do so, the one made during police investigation is very important, especially if the judge decides that an audio or video recording made outside the court can be used as evidence to determine the existence of a crime, and can make up for the deficiency or lack of a statement by the victim in court.


Overall, following the implementation of audio and video-recording procedures throughout the offices of the police, prosecutors and judges, the level of protection has increased for both defendants and the public.


By Wan-Li Yang 2008/8/8